Attorneys for former President Donald Trump requested permission from New York Judge Juan Merchan to file a detailed reply to counter what they describe as “misguided and inaccurate” assertions by Manhattan District Attorney Alvin Bragg 's office.
The request was laid out in a Thursday letter to Merchan, made public on Tuesday. It follows a Wednesday opposition filing by Bragg's office that asserted Trump’s legal team misrepresented key legal and factual issues. The back-and-forth between the defense and prosecutors stems from a Trump motion on July 11 that sought to toss out a jury's guilty verdict on 34 felony counts due to the Supreme Court's presidential immunity decision earlier this month.
In the latest pre-motion letter, Trump’s lawyers argue prosecutors failed to address several critical points the defense raised in their initial request for presidential immunity. They emphasized the need to file a 30-page reply to address the alleged misrepresentations and ensure Merchan has a complete understanding of the newly minted Supreme Court immunity precedent.
"Similar to DANY’s misguided and inaccurate assertions to the Court that a previous motion was untimely ... which they still make no effort to defend — DANY’s July 24 filing contains several legal and factual misrepresentations that invite further error with respect to the historic issues of first impression that the Court must address," Trump attorney Todd Blanche wrote in a letter obtained by Law360.
The letter, which was still not available on the New York Court system's public docket , highlighted several areas where defense attorneys believe Bragg's arguments fall short.
For example, prosecutors wrote in their Wednesday response motion that Trump's attorneys raised immunity arguments before the trial that did not include the evidence Trump’s team now has a problem with and that the defense did not adequately preserve their client's right to bring the new immunity claims.
But Trump’s team contends that it properly objected to the admission of evidence at trial, contrary to Bragg's claim. It argues that Merchan's acknowledgment of their objections, when the judge stated "the objection is noted," and "I don't think you need to object as to each question," validates its preservation efforts.
Bragg's office previously stated that Trump’s alleged actions related to the Federal Election Commission investigation into the hush money matter did not constitute official presidential duties protected by the Take Care Clause and, therefore, do not warrant presidential immunity.
In their response letter, defense lawyers maintain that Bragg ignored the constitutional authority granted by the Take Care Clause. They say it was permissible for Trump while in office to discuss investigations, including the separate FEC probe that was dropped in May 2021, with Justice Department officials as part of his duty to ensure laws are faithfully executed. Bragg's office disagrees.
Additionally, Trump has never acknowledged whether he actually spoke to then-Attorney General Jeff Sessions about the FEC investigation, according to Bragg's office. Prosecutors suggested in the filing that trial testimony from former Trump attorney Michael Cohen regarding his belief that Sessions would "take care of" the FEC investigation amounted to nothing more than an "empty promise."
Moreover, the defense argued in its Thursday letter that oversight of the FEC is within a president's executive powers, challenging Bragg's claim that Trump lacked supervisory authority over the agency. It also disputed characterizations made by Bragg's team of evidence related to FEC inquiries as attempts to interfere with investigations, citing the Supreme Court’s prohibition on inquiring into the president’s motives.
Sentencing in the case, initially scheduled for July 11, was pushed back after Trump's lawyers claimed a recent Supreme Court ruling on presidential immunity backed their claim that his conviction should be tossed. Defense lawyers said certain evidence and testimony should have been withheld from the jury because they were related to protected official acts of the presidency.
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Merchan has said he will rule on Trump's effort to overturn his 34-count conviction on Sept. 6. If his effort fails, a sentencing hearing will take place on Sept. 18.
Trump could face jail time in the case, though Merchan could also sentence him to a lesser penalty, including fines, probation, or house arrest.
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